Ottilia Anna Maunganidze & Antoinette Louw, Researcher & Senior Research Fellow, Transnational Threats and International Crimes Division, ISS Pretoria
On 18 July 2012, Fatou Bensouda, the prosecutor of the International Criminal Court (ICC), released a press statement confirming receipt of a referral of the situation in Mali by the country’s interim Minister of Justice. In terms of the 13 July 2012 referral letter, the government of Mali alleges that gross human rights violations and war crimes have been committed in the country, especially in the northern region. The alleged crimes include the summary executions of soldiers, rape of women and young girls, killing of civilians, the recruitment of child soldiers, torture, pillaging, enforced disappearances, and the destruction of property (including government buildings, humanitarian installations, religious establishments and gravesites). The prosecutor indicated that her office would conduct preliminary investigations into the alleged international crimes in accordance with the Rome Statute of the ICC.
The referral is the first received by the new prosecutor since she took office on 15 June this year. Notably, Mali is the fifth African country that has formally requested the ICC to investigate crimes in its territory and, if formal investigations are instituted, will be the eighth situation before the ICC – all of which are in Africa. This additional African situation comes at a time when the ICC is under fire for not opening investigations in other parts of the world. Some critics even go so far as to contend that the ICC is targeting Africa.
As the new prosecutor begins her tenure at the ICC, it is widely agreed that one of her office’s main challenges is to ensure that the court rebuilds its legitimacy, especially in Africa. To do so the ICC must open formal investigations into situations outside the continent. However, this is easier said than done, as the additional self-referral by Mali – an African country – shows. Although self-referrals do signify support for the ICC by the governments concerned, they are not without their own controversies. For the most part, self-referrals now elicit more scepticism than compliments for the ICC. This has been the case with the self-referrals made by the governments of Uganda, the Democratic Republic of Congo (DRC) and the Central African Republic (CAR), as well as the Côte d’Ivoire case, which – although not a member of the ICC’s Rome Statute – requested the ICC’s intervention after accepting the court’s jurisdiction. In all four cases, allegations are that these requests were intended to cripple government adversaries rather than end impunity for grave crimes, or that the cases represent `victor`s justice` rather than real justice for all sides to the conflict.
Similar criticisms are likely to be levelled at the Mali referral for a number of reasons. Politically, the stakes for control over a new government are now high. The violence that grips the country followed a coup d’état staged by mutinying soldiers. The coup, which began on 21 March 2012 when soldiers seized the presidential palace, state media and other buildings, forced then president Amadou Toumani Touré into hiding and eventually led to his resignation on 8 April. Consequently, the country’s constitution was suspended. The situation in Mali prior to and after the coup has been tense. At present, an interim government – comprised mostly of technocrats – that was formed following the resignation of the president is running the country. This situation has been exacerbated by the Tuareg insurgency in the north of the country, where rebels have taken control of most of northern Mali and declared the independent nation of Azawad. The self-referral could thus be characterised as an attempt by the interim government – which is weak and in search of support and legitimacy both locally and abroad – to put down the rebellion in the north, and eliminate opposition from those who might seek to destabilise a new government.
The political context aside, the Mali referral nevertheless signals welcome and continued support for the ICC and its goals in Africa. First, Mali’s decision to refer shows that the government would like to see an end to the commission of international crimes within the country and that it believes the ICC can help in achieving this. Second (and unlike any of the other self-referrals), the Mali referral has the support of the West African region: on 9 July 2012 ECOWAS’ Contact Group on Mali (composed of Benin, Burkina Faso, Côte d’Ivoire, Liberia, Niger, Nigeria and Togo) recommended that the situation be referred to the ICC. The seven-country contact group also called for the formation of a government of national unity, having already (on 15 May) released a statement accusing the military junta of blocking the return to civilian rule and threatening to impose sanctions.
With political support from both Mali and ECOWAS in place it is now up to the ICC to proceed in a manner that mitigates the criticisms that have been levelled at the other self-referrals. A procedural and transparent approach that emphasises the requirements of the Rome Statute at every step will assist in this regard. For example, if the ICC initiates formal investigations in Mali, it will be doing so in line with article 17 of the Rome Statute that allows the court to intervene only if the government in the country concerned is unwilling or unable to take action. Noting that Mali’s current government is an interim administration, it is unlikely to have the capacity to prosecute the alleged perpetrators itself even if the political will to do so exists. Thus a referral by Mali signifies commitment by the state to end impunity and paves the way for future cooperation with the ICC in respect of investigations and possible arrests. (It is worth noting that this is an important consideration that lends support to cases coming to the ICC via self-referrals: the court lacks its own police force, which means it relies heavily on the cooperation of the states in which it works. Practically, self-referrals are understandably an attractive option for the ICC.)
The ‘willing and able’ test referred to above forms part of the ICC Office of the Prosecutor (OTP)’s obligations under article 53 of the Rome Statute to determine whether there is a reasonable basis to proceed with an investigation into the situation in Mali. To do this, the prosecution must determine whether the ICC has jurisdiction, whether the matter is admissible, and whether proceedings would be in the interests of justice. If the OTP decides to proceed, it is imperative that investigations cover all sides to the conflict from the outset in order to offset accusations that self-referrals result in victor’s justice. These procedures, and their outcomes, need to be publicly explained by the OTP. This is neither an unreasonable requirement nor something foreign to the work of a prosecutor. At the national level prosecutions do not occur in a vacuum, with local courts similarly being vulnerable to abuse by political leaders determined to sideline their opposition. The onus is therefore on the OTP to carefully manage the selection of cases and subsequent investigations and prosecutions. Doing so will help ameliorate negative perceptions about the ICC.
Although it’s still early days, the OTP’s statement on the Mali self-referral demonstrates an awareness of the sensitivities around these types of cases. In her statement Bensouda outlines clearly the origins of the referral, and the steps, in terms of the Rome Statute, that the OTP will now take to determine whether a formal investigation can be launched. This approach is a good start and should assist the ICC in building its legitimacy despite the addition of yet another African situation to the court’s caseload.